Tomar v Tomar - [2021] NZHC 2353

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-815

CIV-2020-404-976 [2021] NZHC 2353

BETWEEN
VIN TOMAR

Appellant

AND

MONIKA TOMAR

Respondent

Hearing: 1 September 2021

Appearances:

Appellant in person

K L Hoult for Respondent

Judgment:

10 September 2021

JUDGMENT OF LANG J

This judgment was delivered by me on 10 September 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:
Niemand Peebles Hoult, Hamilton

TOMAR v TOMAR [2021] NZHC 2353 [10 September 2021]

[1] Mr Tomar appeals against two decisions made in the Family Court determining aspects of a relationship property dispute between himself and his former wife. In CIV-2020-404-815 (the first appeal) Mr Tomar appeals against a substantive judgment delivered by Judge D A Burns on 22 May 2020 (the first decision).1 In CIV-2021-404- 976 (the second appeal) Mr Tomar appeals against a decision delivered subsequently by the same Judge on 20 May 2021 (the second decision).2 In this decision the Judge dismissed several interlocutory applications Mr Tomar had filed following delivery of the first decision.

Preliminary issues

Payment of security for costs on the second appeal

[2] Mr Tomar paid security for costs as directed in CIV-2020-404-815. He did not provide security in CIV-2021-404-976. Section 126(1) of the District Court Act 2016 provides that an appellant may be required under the High Court Rules 2016 to give the Registrar of the High Court security for costs. Section 126(3) provides that where security for costs is not given within the time required by the High Court Rules the appeal is abandoned. An issue therefore arises as to whether the second appeal has been abandoned for non-payment of security for costs.

[3] Ms Hoult points out on Ms Tomar’s behalf that both appeals were the subject of a case management conference before Powell J on 22 June 2021. In a memorandum filed in anticipation of that conference she asked the Judge to require Mr Tomar to pay security for costs in the sum of $1,195 for the second appeal. Unfortunately, however, the minute issued by Powell J on 24 June 2021 did not mention the issue of security. As a result, Mr Tomar has never been directed to provide security for costs on the second appeal. It follows that the appeal against the second decision has not been abandoned as would have been the case if Mr Tomar had failed to provide security for costs as directed by the Court.

1 Tomar v Tomar [2020] NZFC 2960 (the first appeal).
2 Tomar v Tomar [2021] NZFC 4666.

Application to adduce further evidence on appeal

[4] Shortly before the hearing Mr Tomar filed an application seeking leave to adduce further evidence. Ms Hoult suggested that most, if not all, of this material was irrelevant to the issues raised by the appeals. Ultimately, however, she did not oppose the admission of the new material and effectively abided the Court’s decision on the application. I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tomar v Tomar

Details

AGLC: Tomar v Tomar [2021] NZHC 2353
Case: [2021] NZHC 2353
Decision Date: 10 September 2021

CaseChat Overview and Summary

Vin Tomar appeals against two decisions made in the Family Court determining aspects of a relationship property dispute between himself and his former wife Monika Tomar. In the first appeal the Judge dismissed several interlocutory applications Mr Tomar had filed following delivery of a substantive decision made in the Family Court. In the second appeal Mr Tomar appeals against a substantive judgment delivered by Judge D A Burns on 22 May 2020. Mr Tomar contends the Judge erred in several respects in making the decision. The Judge dismissed the appeals. In the first appeal the Judge found that Mr Tomar had ample opportunity to formulate the grounds he wished to advance in his appeal against the first decision. He was bound by the grounds of appeal contained in his final amended notice of appeal. The Judge then dealt with each ground of appeal in turn. The appeals were dismissed. In the second appeal the Judge found that Mr Tomar had not established any ground of appeal against the dismissal of his interlocutory applications. The appeal was dismissed. Monika Tomar was entitled to a single award of costs on a category 2B basis for the hearing and interlocutory steps taken in each appeal. She was also entitled to an award of costs for filing a second set of submissions in the first appeal.

Orders